Religious Freedom vs. LGBT Rights? It's More Complicated

The legal context for what's happening at Gordon College, and how Christians can respond despite intense cultural backlash.

John D. Inazu/ July 16, 2014

Image: Mark Wilson / Getty Images

Religious Freedom vs. LGBT Rights? It's More Complicated

The legal context for what's happening at Gordon College, and how Christians can respond despite intense cultural backlash.

John D. Inazu/ July 16, 2014

A private Christian school holds what it considers a biblical view of marriage. It welcomes all students, but insists that they adhere to certain beliefs and abstain from conduct that violates those beliefs. Few doubt the sincerity of those beliefs. The school's leaders are seen as strange and offensive to the world, but then again, they know that they will find themselves as aliens and strangers in the world.

This description fits a number of Christian schools confronted today with rapidly changing sexual norms. But the description also would have fit Bob Jones University, a school that barred interracial dating until 2000. And in 1983, that ban cost Bob Jones its tax exemption, in a decision upheld by the U.S. Supreme Court. Even for a relatively small school of a few thousand students, that meant losing millions of dollars. And the government's removal of tax-exempt status had a purpose: one Supreme Court justice described it as "elementary economics: when something becomes more expensive, less of it will be purchased."

The comparison between Bob Jones in 1983 and Christian schools today will strike some as unwarranted. Indeed, there are historical reasons to reject it. The discriminatory practices in Bob Jones were linked to the slavery of African Americans and the Jim Crow South. The 1983 Court decision came within a generation of Brown v. Board of Education, and its legal principles extended to private secondary schools (including "segregationist academies") that resisted racial integration.

There are also significant theological differences between Bob Jones's race-based arguments and arguments that underlie today's sexual conduct restrictions. Those differences are rooted in contested questions about identity, as well as longstanding Christian boundaries for sexual behavior. Gay and lesbian Christians committed to celibacy show that sexual identity and sexual conduct are not always one in the same. But these points are increasingly obscured outside of the church. We see this in the castigation of any opposition to same-sex liberties as bigoted. That kind of language has moved rapidly into mainstream culture. And it is difficult to envision how it would be undone or dialed back.

How should Christians respond to these circumstances? First, we must understand the history from which they emerge. Second, we must understand the legal, social, and political dimensions of the current landscape. Third, and finally, we must recognize that arguments that seem intuitive from within Christian communities will increasingly not make sense to the growing numbers of Americans who are outside the Christian tradition.

How We Got Here

Many of the questions today simply were not in play that long ago. For one, governmental regulations have a far wider reach than they did even 100 years ago. We work, play, worship, and live in spaces regulated by government. Just look around the next time you step foot in your local church. Some of the building was probably subsidized through state and federal tax exemptions. Any recent construction likely encountered local zoning ordinances. The certificate of occupancy, fire code compliance, and any food service permits all reflect government regulation. Today, the government, its money, and its laws are everywhere.

We can pin many of these changes on the New Deal, but just as influential were the civil rights era and the battle to end segregation. Civil rights laws extended to what had previously been seen as private spaces and transactions. The laws focused on commercially operated public accommodations, such as transportation, lodging, and restaurants. But they also extended to private schools, neighborhoods, and swimming pools. The reach of these laws was unprecedented—and rightly so. The pervasive impediments to equal citizenship for African Americans have not been seen in any other recent episode in U.S. history. Our country has harmed many people (including my grandparents, who were stripped of their possessions and imprisoned for four years during World War II solely because they were Japanese Americans). But the systemic and structural injustices perpetrated against African Americans—and the extraordinary remedies those injustices warranted—remain in a class of their own.

In less than three decades, the Supreme Court has moved from upholding the criminalizing of gay conduct to affirming gay marriage. The tone of the debates has also shifted.

The legal context surrounding LGBTQ rights has also changed swiftly. In less than three decades, the Supreme Court has moved from upholding the criminalizing of gay conduct to affirming gay marriage. The tone of the debates has also shifted. In 1996, an overwhelming majority of Congress passed the Defense of Marriage Act (DOMA), which was signed into law by President Clinton. Last year, a majority of the Supreme Court concluded that the Act reflected "a bare congressional desire to harm" and that its supporters were motivated by prejudice and spite. These developments are unfolding at breakneck speeds, and will likely affect the laws governing private spaces and transactions.

We also have seen shifts in the law pertaining to the free exercise of religion. The modern religious liberty story begins in 1990, in a case involving Native Americans who lost their jobs for using peyote (a hallucinogenic) for religious reasons. The law prohibiting peyote was generally applicable, meaning it applied to everyone and did not single out religious believers. You couldn't use peyote for either social or religious purposes. The Court decided that the First Amendment provided no special protection against such laws.

That reasoning has broad implications, because many if not most laws are generally applicable. For example, under current law, a religious believer will almost certainly lose a free exercise challenge to an antidiscrimination law that covers sexual orientation.

The public was outraged over the Court's decision in the peyote case. Congress responded with the Religious Freedom Restoration Act (RFRA). The legislation had strong support from across the political spectrum. It passed the Senate in 1993 by a vote of 97-3. Five years later, Congress tried to pass another version, but it died in committee.

The primary reason that the revised legislation failed is that between 1993 and 1998, people began to worry that strong protections for religious liberty could harm gays and lesbians. The bipartisan coalition that had supported the RFRA legislation fractured. Instead of reaffirming comprehensive protections for religious liberty, Congress enacted a more obscure law, largely confined to zoning and prisons.

This isn't the whole story. Two years ago, the Supreme Court recognized important protections for "churches" and "ministers" (though the definitions of both remain unspecified). In addition, part of the original RFRA remains intact—that's how Hobby Lobby recently prevailed in challenging contraception coverage under the Affordable Care Act. But as I noted for CT, Hobby Lobby's narrow legal victory hinged on a statute, not a constitutional principle. In the weeks after Hobby Lobby, we have already seen calls to repeal RFRA and to remove religious exemptions from proposed antidiscrimination legislation at the federal level. And while many states have constitutional and statutory protections for religious liberty, efforts to strengthen those protections at the state level have encountered growing political resistance.

What Lies Ahead

What does the current legal and cultural landscape suggest? Here are three predictions.

Prediction #1: Only religious groups (by no means all of them) will impose restrictions based on sexual conduct. That is in stark contrast to the many groups that make gender-based distinctions: fraternities and sororities, women's colleges, single-sex private high schools, sports teams, fitness clubs, and strip clubs, to name a few. It is perhaps unsurprising in light of these observations that views on gender and sexual conduct have flip-flopped. Thirty years ago, many people were concerned about gender equality, but few had LGBTQ equality on their radar. Today, if you ask your average 20-year-old whether it is worse for a fraternity to exclude women or for a Christian group to ask gay and lesbian members to refrain from sexual conduct, the responses would be overwhelmingly in one direction. That trend will likely continue.

If you ask your average 20-year-old whether it is worse for a fraternity to exclude women or for a Christian group to ask gay and lesbian members to refrain from sexual conduct, the response would be overwhelmingly in one direction.

Prediction #2: Only religious groups will accept a distinction between "sexual conduct" and "sexual orientation," and those groups will almost certainly lose the legal effort to maintain that distinction. Most Christian membership limitations today are based on conduct rather than orientation: they allow a gay or lesbian person to join a group, but prohibit that person from engaging in conduct that falls outside the church's teachings on sexuality. These policies—like the one at Gordon College currently under fire—are not limited to gays or lesbians; all unmarried men and women are to refrain from sexual conduct. The distinction between status and conduct from which they derive is rooted in Christian tradition, and it is not limited to sexuality: one can be a sinner and abstain from a particular sin.

But many people reject the distinction between status and conduct. And in a 2010 decision, Christian Legal Society v. Martinez, the Supreme Court also rejected it, viewing distinctions based on homosexual conduct as equivalent to discrimination against gays and lesbians. I have argued in a recent book (Liberty's Refuge: The Forgotten Freedom of Assembly) that the Court's reasoning is troubling in the context of a private group's membership requirements. But it is the current state of the law.

Prediction #3: Fewer and fewer people will value religious freedom. Although some Christians will respond to looming challenges with appeals to religious liberty, their appeals will likely face indifference or even hostility from those who don't value it. The growing indifference is perhaps unsurprising because many past challenges to religious liberty are no longer active threats. We don't enforce blasphemy laws. We don't force people to make compelled statements of belief. We don't impose taxes to finance training ministers. These changes mean that in practice, many Americans no longer depend upon the free exercise right for their religious liberty. They are free to practice their religion without government constraints.

Additionally, a growing number of atheists and "nonreligious" Americans have little use for free exercise protections. Even though most Americans will continue to value religious liberty in a general sense, fewer will recognize the immediate and practical need for it to be protected by law.

This final prediction is deeply unsettling, because strong protections for religious liberty are core to our country's law and history. But those protections have been vulnerable since the Court's decision in the peyote case. And they will remain vulnerable unless the Court revisits its free exercise doctrine.

After Religious Exceptionalism

If I am correct about these three predictions, then arguments rooted in religious exceptionalism will see diminishing returns. There is, however, a different argument that appeals to a different set of values. It's the argument of pluralism: the idea that, in a society that lacks a shared vision of a deeply held common good, we can and must live with deep difference among groups and their beliefs, values, and identities. The pluralist argument is not clothed in the language of religious liberty, but it extends to religious groups and institutions. And Christians who take it seriously can model it not only for their own interests but also on behalf of their friends and neighbors.

Pluralism rests on three interrelated aspirations: tolerance, humility, and patience. Tolerance means a willingness to accept genuine difference, including profound moral disagreement. In the pluralist context, tolerance does not embrace difference as good or right; its more limited aspiration is permitting differences to coexist.

The second aspiration, humility, recognizes that our own beliefs and intuitions rest upon tradition-bound values that can't be fully proven or justified by external forms of rationality. Notions of "equality" and "morality" emerge from within particular traditions whose basic premises are not endorsed by all. Humility holds open that there is right and wrong and good and evil, and that in the fullness of time the true meaning of equality and morality will emerge. But humility also opens the door to hearing others' beliefs about right and wrong, good and evil. Instead of making claims about what we can know or prove, we might point out that faith commitments underlie all beliefs (religious or otherwise) and stand ready to give the reason for the hope that we have (1 Pet. 3:15).

The third aspiration, patience, recognizes that contested moral questions are best resolved through persuasion rather than coercion, and that persuasion takes time. Most of us—whatever our beliefs—think we are right in a profound way. Most of us structure our lives around our deepest moral commitments. And we instinctively want our normative views to prevail on the rest of society. But patience reminds us that the best means to a better end is through persuasion and dialogue, not coercion and bullying.

In this age, the argument of pluralism is far likelier to resonate in the public square than arguments for religious exceptionalism.

Pluralism does not entail relativism. Living well in a pluralist world does not mean a never-ending openness to any possible claim. Every one of us holds deeply entrenched beliefs that others find unpersuasive, inconsistent, or downright loopy. More pointed, every one of us holds beliefs that others find morally reprehensible. Pluralism does not impose the fiction of assuming that all ideas are equally valid or morally benign. It does mean respecting people, aiming for fair discussion, and allowing for the right to differ about serious matters.

Pluralism and Witness

The argument for pluralism and the aspirations of tolerance, humility, and patience are fully consistent with a faithful Christian witness. And in this age, they are also far likelier to resonate than arguments for religious exceptionalism. The claim of religious exceptionalism is that only believers should benefit from special protections, and often at the cost of those who don't share their faith commitments. The claim of pluralism is that all members of society should benefit from its protections.

Christians have a long way to go in affirming the value of pluralism for all members of society. We might begin by recognizing its role for our gay and lesbian neighbors. When Uganda enacts a law that punishes homosexuality with death, U.S. Christians can speak out against such a law. Domestically, we need to think carefully about the kinds of legislation being pushed at the state level. Some proposed laws are undoubtedly important to protect religious institutions' right to live in accordance with their own beliefs and traditions; others are deeply problematic. Christians in states without any antidiscrimination protections for gays and lesbians might consider supporting those laws containing exemptions for religious groups, rather than simply advocating for religious freedom on its own.

Unkind words have emerged from almost every corner of the public discourse. Christians should not be bullied or silenced by careless language. But neither should they engage in it. Advocacy for Christian witness must itself demonstrate Christian witness. In this way, our present circumstances provide new opportunities to embody tolerance, humility, and patience. And, of course, we have at our disposal not only these aspirations but also the virtues that shape our lives: faith, hope, and love.

John Inazu is associate professor of law at Washington University School of Law, an expert on the First Amendment freedoms of speech, assembly, and religion, and the author of Liberty's Refuge: The Forgotten Freedom of Assembly (Yale University Press, 2012). He recently wrote for CT about Hobby Lobby.